United States District Court, Eastern District of New York
April 4, 2002
FELIX POWELL, PETITIONER,
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES; JAMES W. ZIGLAR, COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION SERVICE; IMMIGRATION AND NATURALIZATION SERVICE; AND UNITED STATES DEPARTMENT OF JUSTICE, RESPONDENTS.
The opinion of the court was delivered by: Gershon, District Judge.
Felix Powell has filed a petition for habeas corpus relief pursuant to
28 U.S.C. § 2241, challenging his continued detention by the
Immigration and Naturalization Service ("INS") more than 90 days after
his removal order became final. Although that order became final on
November 6, 1998, petitioner has not been deported and is currently in
INS custody in Oakdale, Louisiana. Powell has, however, been accorded the
custody review hearings INS regulations provide for aliens who have been
detained beyond the expiration of their removal period. See
8 C.F.R. § 241.4.
Respondents claim that petitioner is to blame for his continued
detention. In particular, they claim that petitioner has made repeated
false and conflicting representations to the INS concerning his name and
citizenship and that these representations have frustrated their ability
to obtain the travel documents that are necessary to effect his
On April 27, 2001, I ordered petitioner to show cause why his petition
should not be dismissed on the ground that he has obstructed the efforts
of the INS to deport him. Petitioner submitted two responses to the Order
to Show Cause. In the first, dated May 9, 2001, petitioner conclusorily
stated that he "has not and neither to his knowledge made any false
statements to the INS concerning his citizenship." In a second
submission, dated May 21, 2001, petitioner stated that respondents'
allegations are "false," that he informed the INS that he was born in
Jamaica and that "he came to the United States when he was very little
with his late mother," that there "is nothing the INS has asked
petitioner to do to effect his removal that he did not do," that he "has
NEVER obstructed the INS efforts to deport him," and that he "is ready to
Once an order of removal against an alien becomes final, the Attorney
General is generally required to remove the alien from the United States
within 90 days. See 8 U.S.C. § 1231 (a)(1)(A). This 90-day time span
is referred to as the "removal period." If the government fails to remove
the alien within the removal period, it may further detain the alien if,
inter alia, the Attorney General determines that the alien is a "risk to
the community or unlikely to comply with the order of removal."
8 U.S.C. § 1231 (a)(6).
Section 1231 also provides that, if an alien acts to frustrate the
INS's ability to remove him, the removal period is tolled during the
period of the alien's actions:
The removal period shall be extended beyond a period
of 90 days and the alien may remain in detention
during such extended period if the alien fails or
refuses to make timely application in good faith for
travel or other documents necessary to the alien's
departure or conspires or acts to prevent the alien's
removal subject to an order of removal.
8 U.S.C. § 1231 (a)(1)(C).
Petitioner's situation fits squarely within the latter provision.
Although petitioner alleges that he has not provided the INS with false
information and that he wants to return to Jamaica, he has repeatedly
provided the INS with inconsistent information regarding his identity, and
these inconsistencies have demonstrably hampered the INS in carrying out
In a signed, sworn affidavit dated October 10, 1997, petitioner told
the INS that he was born in the U.S. Virgin Islands and came to New York
as a U.S. citizen when he was 16 years old. In another signed, sworn
affidavit dated June 29, 1998, petitioner told the INS that he was born
in Trinidad and that he entered the United States in 1984, when he would
have been approximately 20 years old. In a signed, sworn affidavit dated
June 30, 1998, petitioner stated that he was born in Kingston, Jamaica
and that he entered the U.S. in 1990, when he would have been
approximately 26 years old. He explained that he previously reported being
from the U.S. Virgin Islands and Trinidad because he had testified
against various individuals in Jamaica and was afraid to return there.
During a telephonic interview with the Jamaican consulate on January 18,
2000, Powell claimed that he was born in Jamaica but moved to Canada with
his parents and was a Canadian citizen. In another sworn statement dated
July 10, 2000, petitioner stated that he was a citizen of Jamaica, that
he did not know where he was
born, and that he had entered the U.S. in 1979. Powell also provided the
INS inconsistent information regarding his name (claiming during the
January 2000 interview that it was Rodclif West, not Felix Powell) and
how many children he had.
Even Powell's statements to the court have been contradictory. For
example, in his January 11, 2001 petition, Powell alleged that he entered
the United States in 1979 when he would have been 15, yet in his May 2001
statement he represented that he first entered this country when "very
At every step along the changing path of petitioner's story, INS
officials have attempted to secure the travel documents necessary to
effectuate Powell's removal. They have contacted officials of, first, the
U.S. Virgin Islands, then Jamaica, then Canada, and again, Jamaica;
repeatedly interviewed petitioner; and contacted numerous individuals
claimed to be Powell's friends and relatives. None of these efforts have
so far borne fruit.
Petitioner's conflicting statements and the difficulties they have
caused respondents in effectuating his removal belie his claim that he
has cooperated with the efforts of the INS to remove him.*fn1 Instead, I
find that Powell has acted to prevent his removal within the meaning of
8 U.S.C. § 1231 (a)(1)(C). Therefore, I conclude that petitioner's
removal period has been extended pursuant to that provision and that his
continued detention more than 90 days after his order of removal became
final does not entitle him to habeas corpus relief. See Ncube v. INS
Dist. Directors and Agents, 98 Civ. 0282, 1998 WL 842349, at *16
(S.D.N.Y. Dec.2, 1998) (magistrate judge's report and recommendation;
adopted Dec. 30, 1998) (holding alien past removal period not
unconstitutional where alien was solely responsible for delay in
executing removal order); Sango-Dema v. District Director,
122 F. Supp.2d 213, 221 (D.Mass. 2000) (alien cannot trigger right to
freedom from indefinite detention "with his outright refusal to cooperate
with INS officials").
Even if Powell's petition is read to challenge the constitutionality of
Section 1231(a)(1)(C), it must fail, because that provision is consistent
with the requirements of due process. In a recent examination of Section
1231, the Supreme Court held that Section 1231(a)(6) does not permit the
government to detain an alien indefinitely and that, "once removal is no
longer reasonably foreseeable, continued detention is no longer
authorized by statute." Zadvydas v. Davis, 533 U.S. 678, 699, 121 S.Ct.
2491, 150 L.Ed.2d 653 (2001). The Court established a presumption that,
where removal is reasonably foreseeable, it can be accomplished in six
[a]fter this 6-month period, once the alien provides
good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable
future, the Government must respond with evidence
sufficient to rebut that showing. . . . This 6-month
presumption, of course, does not mean that every alien
not removed must be released after six months. To the
contrary, an alien may be held in confinement until it
has been determined that there is no
significant likelihood of removal in the reasonably
Id. at 701, 121 S.Ct. 2491.
Zadvydas addressed the constitutionality of Section 1231(a)(6) in the
case of aliens "placed in deportation limbo because their countries of
origin had refused to allow [them] entrance." Sango-Dema, 122 F. Supp.2d
at 221. It did not discuss the constitutionality of Section 1231(a)(1)(C)
and the tolling of the removal period during the time of an alien's
non-cooperation. See Guner v. Reno, 00 Civ. 8802, 2001 WL 940576, at *2
(S.D.N.Y. Aug. 20, 2001) (rejecting petitioner's reliance on Zadvydas in
challenging detention beyond 90-day removal period where it was
petitioner's "[own] efforts [to challenge the denial of discretionary
relief from deportation] that have prevented INS from deporting him").
Even if Zadvydas were applicable here, I would find petitioner's
continued detention to be appropriate. Respondents have produced
sufficient evidence to rebut petitioner's claim that "there is no
reasonable likelihood of deportation in the foreseeable future." Once
petitioner provides accurate and complete information to the INS, it is
likely that he can and will be removed. Id.
For the foregoing reasons, Powell's petition for relief under
28 U.S.C. § 2241 is denied.